Family Christian World, Inc. d/b/a Family Christian Center, Stephan "Steve" Munsey, Melodye J. Munsey, and Darryl Anthony Smith, Appellants-Defendants,
Vicki Olds, Appellee-Plaintiff.
from the Lake Superior Court The Honorable John R. Pera,
Judge Trial Court Cause No. 45D10-1611-CT-191
Attorney for Appellants Philip E. Kalamaros Hunt Suedhoff
Kalamaros LLP Saint Joseph, Michigan.
Attorney for Appellee Trent A. McCain McCain Law Offices,
P.C. Merrillville, Indiana.
of the Case
Family Christian World, Inc., d/b/a Family Christian Center
("FCC"), Stephen Munsey, and Melodye Munsey
("the Munseys") appeal the trial court's denial
of their motion to dismiss Vicki Olds' complaint seeking
damages for the alleged wrongful death of her daughter,
Dominique Olds ("Nikki"). FCC and the Munseys
present a single issue for our review, namely, whether the
trial court erred when it denied their motion to dismiss, in
which they alleged that Nikki was their employee and, thus,
that the Worker's Compensation Act provides the exclusive
remedy for any claim arising from her death. We affirm.
and Procedural History
FCC is a church in Munster, and the Munseys are employed by
the church as Senior Pastors. Nikki, a full-time student at
Valparaiso University, was a member of FCC's
congregation. In April and May 2015, FCC hired Nikki "as
a babysitter, under the direct supervision of the
Munseys." Appellants' App. Vol. II at 16. Nikki
filled out an IRS Form W-9 when she was hired. Nikki babysat for
FCC on five occasions between April 1 and May 20, 2015,
both at the FCC church and at the Munseys' private
residence, and FCC paid Nikki on each occasion. Nikki did not
have a set work schedule with FCC, but she accepted
babysitting jobs with FCC if those jobs did not conflict
either with her job in the dining hall at Valparaiso
University or her classes there.
On May 29, 2015, Nikki was babysitting the Munseys'
granddaughter at the Munseys' residence in Schererville.
At approximately 3:00 p.m., someone found Nikki
"floating face down" and "unresponsive"
in the Munseys' swimming pool. Id. at 17. Nikki
was transported by ambulance to a hospital, but efforts to
resuscitate her were unsuccessful, and she died on June 1.
On November 17, 2016, Olds filed a complaint alleging in
relevant part that FCC and the Munseys were liable for
Nikki's wrongful death. On December 16, FCC and the
Munseys filed a motion to dismiss for lack of subject matter
jurisdiction under Indiana Trial Rule 12(B)(1). In particular,
they alleged that Nikki was their employee and, as such, that
Olds could only bring a claim against them under the
Worker's Compensation Act ("the Act"). The
trial court denied that motion following a hearing. This
certified interlocutory appeal ensued.
FCC and the Munseys contend that Nikki was their employee and
that the Act provides the exclusive remedy for her death,
which, they maintain, arose out of and in the course of her
employment. Thus, they assert that the trial court is without
subject matter jurisdiction to hear Olds' complaint.
The Act is the exclusive means by which an employee, her
personal representatives, dependents, or next of kin, at
common law or otherwise, can pursue compensation for an
employee's injury or death arising out of and in the
course of her employment. See Ind. Code §
22-3-2-6 (2018). A defense against a negligence claim on the
basis that the plaintiff's exclusive remedy is to pursue
a claim for benefits under the Act is properly advanced
through a motion to dismiss for lack of subject matter
jurisdiction under Indiana Trial Rule 12(B)(1). See
Wishard Memorial Hosp. v. Kerr, 846 N.E.2d 1083, 1087
(Ind.Ct.App. 2006). "'In ruling on a motion to
dismiss for lack of subject matter jurisdiction, the trial
court may consider not only the complaint and motion but also
any affidavits or evidence submitted in support.'"
Id. (quoting GKN Co. v. Magness, 744 N.E.2d
397, 400 (Ind. 2001)). The trial court may weigh the evidence
to resolve the jurisdictional issue. Id.
The standard of appellate review for a Trial Rule 12(B)(1)
motion to dismiss is dependent upon what occurred in the
trial court, that is: (i) whether the trial court resolved
disputed facts; and (ii) if the trial court resolved disputed
facts, whether it conducted an evidentiary hearing or ruled
on a paper record. Id. Here, the trial court ruled
entirely on a paper record. We review de novo a trial
court's ruling on a motion to dismiss where the facts
before the trial court are disputed and the trial court rules
on a paper record. Id.
When challenging the trial court's jurisdiction, the
purported employer bears the burden of proving that an
alleged employee's claim falls within the scope of the
Act unless the complaint demonstrates the existence of an
employment relationship. Id. at 1088. Olds'
complaint does not state whether Nikki was an employee or
independent contractor. Therefore, FCC and the Munseys bore
the burden of demonstrating a lack of subject matter
jurisdiction based on their claim that Nikki was their
employee and Olds' exclusive remedy fell under the
In Moberly v. Day, 757 N.E.2d 1007, 1010-11 (Ind.
2001), our Supreme Court set out a ten-factor analysis to
distinguish employees from independent contractors. Those
(a)the extent of control which, by the agreement, the master
may exercise over the details of the work;
(b)whether or not the one employed is engaged in a distinct
occupation or business;
(c)the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the
employer or by a specialist without supervision;
(d)the skill required in the particular occupation;
(e)whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the